ACK Rat's attempt to kill the Vineyard Wind project came closer to an unsuccessful end this week when Federal Judge Talwani granted a motion for summary judgment against ACK Rat and its founder that will end the case unless the First Circuit Court of Appeals sees things differently, which it won't.
Not surprisingly, and deferring to the decision making of the Federal agencies involved, as the law has required for over forty years, the Judge found that ACK RAT had not met its high burden of showing that the Federal Government's actions in permitting the Vineyard Wind project were arbitrary and capricious.
Pretty much anyone could have predicted that but that's beside the point. Judge Talwani's long decision is still worth reading for several reasons.
First, it details what this project, its proponents, and the Federal Government have gone through since Vineyard Wind was leased the site of the project in 2015, over eight years ago. Those of us hoping for a speedy transition to renewable energy should be joining the President and Congress in thinking about how the review of these projects might take less time.
Second, Judge Talwani affirmed ACK Rat's right to bring its doomed lawsuit because its founder had seen right whales before and had "concrete plans" to see them again. That, Judge Talwani found, was sufficient to give the Nantucket resident standing to sue the Federal Government. The Justice Department has been pushing back hard on such assertions of what Judges and lawyers call standing but without much success yet. Any meaningful Federal legislation to expedite the permitting of infrastructure projects is going to have to address the question of who can sue the Federal and State Governments over their permitting decisions.
Third, Judge Talwani made plain that her decision making was constrained by the long-standing precedent that Judges should defer to the decision making of Federal agencies specifically charged with making specific decisions under specific Federal laws unless the decision making is completely indefensible. Just a few weeks ago, the Supreme Court of the United States decided to hear a case implicating that long-standing precedent and many, including me, expect it might use that case to overturn that precedent. The absence of that precedent likely wouldn't have affected the ultimate outcome of ACK Rat's case but it would most certainly have made its resolution, and the resolution of many other cases, much more complicated.
Yes, the Federal Government and Vineyard Wind were victorious, and likely will be in the two remaining lawsuits against them, but we're not going to get where we want to get in our fight against the warming of our planet by the time we need to get there if everyone has to go through what Vineyard Wind has gone through.
Nantucket Residents claimed that the agency didn’t use the best scientific and commercial data, but Talwani said that the group was unable to offer evidence that the agency’s metrics for determining harm to whales were arbitrary and capricious. It also wasn’t able to offer evidence to support its “speculative argument” that right whales will flee into vessel traffic, the judge said. The bureau considered a “suite” of mitigation measures to limit harms to surrounding mammals, and the group couldn’t show that the agency’s reliance on them was unlawful, Talwani said.